Jury's quandary: Is porn photo fake?

Prosecutors struggle to prove pictures not digitally altered

Published 4:00 am, Monday, February 25, 2008

Each week, about 100,000 sexually explicit images of children arrive on CDs or portable disk drives at Michelle Collins' office.

They are sent by police and prosecutors who hope Collins and her 11 analysts at the National Center for Missing and Exploited Children can verify that the graphic pictures are real, not computer-generated. When they can't, officials sometimes turn to outside experts.

All this is being done - at an annual cost in the millions of dollars collectively in child-pornography cases alone - as software such as Adobe's Photoshop makes it easier to fake photos and as juries become more skeptical about what they see.

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Although challenges to digital photos come in all types of criminal and civil cases, they are especially pronounced in child-pornography cases because of a 2002 U.S. Supreme Court decision striking down a ban on computer-generated child pornography. Defense attorneys are trying to use the ruling to introduce reasonable doubt in jurors' minds about the images' authenticity.

Prosecutors still generally prevail, but "this has certainly created an additional burden," said Thomas Kerle of the Massachusetts State Police. "I can say that unequivocally, it has made the prosecution of these types of cases more difficult. It takes ... resources I think could be better applied to investigating" more cases.

Drew Oosterbaan, who heads the U.S. Department of Justice's Child Exploitation and Obscenity Section, said prosecutors even sometimes reduce charges, only submitting photos they can easily verify, because outside experts can be expensive - with travel, hotels and consulting fees, along with possible delays.

"This can affect the sentence the defendant gets," he said. "Before (the 2002 ruling) we would generally charge all the images."

Oosterbaan added that although defense lawyers have the right - and duty - to challenge evidence, they are doing so without "any shred of evidence there are wholly computer-generated images being generally circulated and passed off as real children out there."

And many law-enforcement officials worry that the time and money needed to withstand any challenges will only grow as technology improves and makes it more difficult to tell a computer-generated image from a real one.

"If something becomes more difficult for the government to prove, so be it. They have the burden of proof," said First Amendment lawyer Louis Sirkin, lead counsel in the challenge that led to the 2002 Supreme Court ruling.

Child pornography is illegal, but the Supreme Court struck down on free-speech grounds a 1996 federal ban on material that "appears to be" a child in a sexually explicit situation. That ruling covers computer-generated images, although morphing - such as grafting a child's school picture onto a naked body - remains illegal.

Collins' Child Victim Identification Program in Alexandria, Va., grew out of that ruling. After officials submit seized photos, the center uses software and visual inspections to look for matches. It can usually verify that children in some or all of the images are known and real.

The program, which costs about $1 million a year to run, now has 1,300 children in its database, up from 20 in 2002. Staff grew from just Collins then to 11 full-time analysts who now work under her.

Because of the graphic nature of the images, a psychologist visits each week, and analysts must undergo counseling at least quarterly.

"Not everybody can do it," said Raymond Smith, a longtime investigator who oversees child-exploitation cases at the U.S. Postal Inspection Service. "You have to be able to come to grips with seeing children be victimized and abused. It can tear you up, (but) through your efforts you are identifying the people that hurt these children."

Hany Farid, a Dartmouth College professor who has testified for the prosecution in some cases, said he has been getting more inquiries about authenticity - not only for child-pornography cases but also civil lawsuits questioning medical images in malpractice cases or signatures in contract disputes. News organizations have also looked for ways to authenticate photos.

"Because so many people get photographic fakes in their (electronic) mailboxes, to the average juror it resonates," he said.